In its recent statement of changes to the Immigration Rules, the Home Office announced various changes to the EU Settlement Scheme (EUSS).
One change coming into effect on 9 August 2023 should catch the eye of any EU (and EEA and Swiss) citizens who have been putting off applying for their UK residence status under the EUSS. Others may simply be unaware they can apply.
From 9 August 2023 it is likely the Home Office will enforce a stricter approach to what is a “reasonable ground” for a late application. Anyone considering an application to the EUSS should therefore apply as soon as possible and before 9 August.
EU citizens in the UK before the end of 2020 could apply to the EUSS to be granted permission to stay post-Brexit. If they have been in the UK for less than 5 years, pre-settled status is granted and if they have been here for 5 years or more, settled status is granted.
Importantly, EU citizens who lived in the UK in the past for 5 consecutive years can apply under these provisions. That includes people who may have lived and worked in the UK many years ago before the UK left the EU, but who may not be aware that they may be able to obtain settled status based on their historic residence.
The deadline to apply to the EUSS was 30 June 2021. However, many people have continued to apply after that date, and the Home Office has so far implemented considerable flexibility around what is considered to be a “reasonable excuse” for applying late. Simply not knowing about the ability to apply under the EUSS has been a sufficient excuse.
What is changing?
Coming into effect on 9 August 2023, the EUSS rules are changing such that whether there is a “reasonable excuse” for a late application will be a validity requirement instead of an eligibility requirement. This means that whether an applicant has a “reasonable excuse” for a late application will be considered before any other merits of the application are looked at. Importantly, if the Home Office rejects the application as invalid, it means there is no right of appeal or Administrative Review. The only recourse would be judicial review.
This move can be seen as the Home Office taking a stricter approach in assessing the validity of late EUSS applications. Previously, applicants were issued a "Certificate of Application (CoA)" at the point of submission to prove various rights such as the right to work and rent. However, this change means that the Home Office will not issue a CoA until it has decided on the validity points, potentially delaying the applicant's ability to prove their rights.
The Home Office’s accompanying press release for the changes included a signal of a change in approach: “More than 2 years on from the EUSS application deadline of 30 June 2021 for those resident in the UK by the end of the transition period on 31 December 2020, the range of measures laid before Parliament today will also make sure that the Home Office can ensure the integrity of the EUSS, protecting it against fraud and abuse. They include changes to the way reasonable grounds for late applications to the scheme are considered.”
It is not to say the Home Office will not continue to accept some late applications. But we expect less discretion to be applied.
What should prospective applicants do about it?
As stated above, many EU citizens who lived and worked in the UK before 31 December 2020 may be unaware they could still apply late to the EUSS. Some of those people may have lived in the UK for 5 years and could qualify for settled status, others may qualify for pre-settled status.
Anyone considering an application to the EUSS should therefore apply as soon as possible and before 9 August. Information on applying can be found here.
As time is of the essence, we would suggest using the EU Exit: ID Document Check app and submitting the application form by 8 August at the latest. Any documents in support can then be submitted later and we would be pleased to assist in advising on that.
Other EUSS developments
Other changes announced in the recent statement of changes are a direct result of High Court judgement discussed in our previous blog.